Chapter 701

701.0304(2)(a)1. 1. “Contingent successor remainder beneficiary” means a beneficiary who would succeed to the interest of a presumptive remainder beneficiary if the presumptive remainder beneficiary and all of the current beneficiaries failed to take such interest.

701.0304(2)(a)2. 2. “More remote contingent successor remainder beneficiary” means any contingent successor remainder beneficiary whose interest arises only upon the failure of the interest of another contingent successor remainder beneficiary.

701.0304(2)(b) (b) A presumptive remainder beneficiary or a person authorized to represent the presumptive remainder beneficiary under sub. (1) may represent and bind a contingent successor remainder beneficiary or a more remote contingent successor remainder beneficiary for the same purposes, in the same circumstances, and to the same extent as an ascertainable beneficiary may represent and bind a minor or person who is incapacitated, unborn, or not reasonably ascertainable.

701.0304(2)(c) (c) If a presumptive remainder beneficiary does not represent a more remote contingent successor remainder beneficiary, a contingent successor remainder beneficiary may represent and bind a more remote contingent successor remainder beneficiary for the same purposes, in the same circumstances, and to the same extent as an ascertainable beneficiary may represent and bind a minor or person who is incapacitated, unborn, or not reasonably ascertainable.

701.0304(2)(d) (d) A contingent successor remainder beneficiary or a more remote contingent successor remainder beneficiary may be represented under pars. (b) and (c) whether or not the contingent successor remainder beneficiary or more remote contingent successor remainder beneficiary lacks capacity.

701.0304(2)(e) (e) Under pars. (b) and (c), the difference between a beneficiary’s interest as a presumptive remainder beneficiary or contingent successor remainder beneficiary does not constitute a conflict of interest as to any more remote contingent successor remainder beneficiary.

701.0304 History History: 2013 a. 92; 2023 a. 127.

701.0305 701.0305 Appointment of representative by a court. If the court determines that an interest is not represented under this subchapter, or that the otherwise available representation might be inadequate, the court may appoint a representative or guardian ad litem to receive notice, give consent, and otherwise represent, bind, and act on behalf of the person who is not represented or whose representation might be inadequate. A representative or guardian ad litem may be appointed to represent several persons or interests.

701.0305 History History: 2013 a. 92; 2023 a. 127.

701.0306 701.0306 Designated representative.

701.0306(1) (1) If specifically nominated in the trust instrument, one or more persons may be designated to represent and bind a beneficiary and receive any notice, information, accounting, or report. The trust instrument may also authorize any one or more persons to designate one or more persons to represent and bind a beneficiary and receive any notice, information, accounting, or report.

701.0306(2) (2) Except as otherwise provided in this chapter, a person designated in sub. (1) may not represent and bind a beneficiary while that person is serving as trustee.

701.0306(3) (3) Except as otherwise provided in this chapter, a person designated in sub. (1) may not represent and bind another beneficiary if the person designated also is a beneficiary, unless one of the following applies:

701.0306(3)(a) (a) That person was named by the settlor.

701.0306(3)(b) (b) That person is one of the following:

701.0306(3)(b)1. 1. The beneficiary’s spouse.

701.0306(3)(b)2. 2. A grandparent or descendant of a grandparent of the beneficiary.

701.0306(3)(b)3. 3. A grandparent or descendant of a grandparent of the beneficiary’s spouse.

701.0306 History History: 2023 a. 127.

701.0307 701.0307 Role of a representative or guardian ad litem.

701.0307(1) (1) A representative or guardian ad litem may act on behalf of the individual represented with respect to any matter arising under this chapter, whether or not a judicial proceeding concerning the trust is pending.

701.0307(2) (2) In making decisions, a representative or guardian ad litem may consider any general benefit accruing to the living members of the individual’s family.

701.0307 History History: 2023 a. 127 ss. 62, 63, 65.

701.0308 701.0308 Liability of representative. No representative or guardian ad litem is liable to the beneficiary whose interests are represented, or to anyone claiming through that beneficiary, for any actions or omissions to act made in good faith.

701.0308 History History: 2023 a. 127.

subch. IV of ch. 701 SUBCHAPTER IV

CREATION, VALIDITY, MODIFICATION,
AND TERMINATION OF TRUST

701.0401 701.0401 Methods of creating a trust. A trust may be created by any of the following:

701.0401(1) (1) A transfer of property to another person as trustee during the settlor’s lifetime, by will, or by other disposition taking effect upon the settlor’s death.

701.0401(2) (2) A declaration by an owner of property that the owner holds identifiable property as trustee or declaration by any person who intends to create a trust with the expectation that property of the person or others will be transferred to the trust.

701.0401(3) (3) An exercise of a power of appointment in favor of a trustee.

701.0401(4) (4) A court pursuant to its statutory or equitable powers.

701.0401(5) (5) A guardian of the estate or conservator acting with authority of the court, a representative payee, or an agent under a power of attorney that expressly grants authority to create the trust.

701.0401(5m) (5m) A declaration of an intent to create a trust with the intention that the trust will later be funded by assets of the person who created the trust or by another person with legal authority to fund the trust. The person making the declaration is considered to have created the trust, regardless of whether the person funds the trust with the person’s own assets.

701.0401(6) (6) Any other manner authorized by statute, regulation, common law, or other provision having the effect of law.

701.0401 History History: 2013 a. 92; 2023 a. 127.

701.0402 701.0402 Requirements for creation.

701.0402(1) (1) A trust is created only if all of the following are satisfied:

701.0402(1)(a) (a) The settlor of the trust has capacity, as defined in sub. (4), to create the trust, unless the trust is created by court order or by an agent, guardian of the estate, conservator, or representative payee with authority to act.

701.0402(1)(b) (b) The settlor indicates an intention to create the trust; or a statute, regulation, common law, other provision having the effect of law, judgment, or decree creates or authorizes the creation of a trust.

701.0402(1)(c) (c) The trust has a definite beneficiary or is one of the following:

701.0402(1)(c)1. 1. A charitable trust.

701.0402(1)(c)2. 2. A trust for the care of an animal, as provided in s. 701.0408.

701.0402(1)(c)3. 3. A trust for a noncharitable purpose, as provided in s. 701.0409.

701.0402(1)(d) (d) The trustee has duties to perform.

701.0402(1)(e) (e) The same person is not the sole trustee and sole beneficiary, and there are no remainder beneficiaries other than the person’s estate.

701.0402(2) (2) A beneficiary is definite if the beneficiary can be ascertained at the time the trust is created or in the future.

701.0402(3) (3) A power in a trustee or trust protector to select a beneficiary from an indefinite class is valid. If the power is not exercised within a reasonable time, the power fails and the property subject to the power passes to the persons who would have taken the property had the power not been conferred.

701.0402(4) (4) The capacity required to create a trust is the same as the capacity to make a will.

701.0402 History History: 2013 a. 92; 2023 a. 127.

701.0403 701.0403 Trusts created in other jurisdictions. A trust not created by will is validly created if its creation complies with the law of the jurisdiction in which the trust instrument was executed, or the law of the jurisdiction in which, at the time of creation, any of the following was satisfied:

701.0403(1) (1) The settlor was domiciled, had a place of abode, or was a national.

701.0403(2) (2) A trustee was domiciled or had a place of business.

701.0403(3) (3) Any trust property was located.

701.0403 History History: 2013 a. 92.

701.0404 701.0404 Trust purposes. A trust may be created only to the extent its purposes are lawful and possible to achieve. A trust and its terms must be for the benefit of its beneficiaries or for a noncharitable, but otherwise valid, purpose as described in s. 701.0409.

701.0404 History History: 2013 a. 92.

701.0405 701.0405 Charitable purposes; enforcement.

701.0405(2) (2) If the terms of a charitable trust do not indicate a particular charitable purpose or beneficiary, or designate persons or procedures for selecting charitable purposes or beneficiaries, the court may select one or more charitable purposes or beneficiaries. The selection must be consistent with the settlor’s intention to the extent it can be ascertained.

701.0405(3) (3) The settlor of a charitable trust or his or her designees, whether identified within or without the terms of the trust, or a charitable entity named in the trust instrument, or the attorney general, or a cotrustee, or such other person the court determines to have sufficient interest may maintain a proceeding to enforce the trust.

701.0405 History History: 2013 a. 92; 2023 a. 127.

701.0406 701.0406 Creation of trust induced by fraud, duress, or undue influence. A trust is void to the extent its creation was induced by fraud, duress, or undue influence.

701.0406 History History: 2013 a. 92.

701.0407 701.0407 Evidence of oral trust. Except as required by a statute other than this chapter, a trust does not need to be evidenced by a trust instrument, but the creation of an oral trust and its terms may be established only by clear and convincing evidence.

701.0407 History History: 2013 a. 92.

701.0408 701.0408 Trust for care of animal.

701.0408(1) (1) An animal trust may be created to provide for the care of an animal alive during the settlor’s lifetime. The animal trust terminates upon the death of the animal or, if the animal trust was created to provide for the care of more than one animal alive during the settlor’s lifetime, upon the death of the last surviving animal.

701.0408(2) (2) An animal trust authorized by this section may be enforced by an animal protector. A person having an interest in the welfare of the animal may request the court to appoint an animal protector.

701.0408(3) (3) Property of an animal trust authorized by this section may be applied only to its intended use, except to the extent the court determines that the value of the animal trust property exceeds the amount required for the intended use. Property not required for the intended use must be distributed to the settlor, if then living, otherwise to the settlor’s successors in interest.

701.0408 History History: 2013 a. 92; 2023 a. 127.

701.0409 701.0409 Noncharitable trust without ascertainable beneficiary. Except as otherwise provided in s. 701.0408 or by another statute, the following rules apply:

701.0409(1) (1) A trust may be created for a noncharitable purpose without a definite or definitely ascertainable beneficiary or for a noncharitable but otherwise valid purpose to be selected by the trustee.

701.0409(2) (2) A trust may be created for maintaining, keeping in repair, and preserving any grave, tomb, monument, gravestone, or any cemetery. Any cemetery authority under s. 157.061 (2) may receive property in trust for any of the purposes specified in this subsection and apply the income from the trust to the purpose stated in the trust instrument.

701.0409(3) (3) A trust authorized by this section may be enforced by a trust protector with the power to enforce the trust. If there is not a trust protector with the power to enforce the trust, a court may appoint a trust protector with the power to enforce the trust under s. 701.0818.

701.0409(4) (4) Property of a trust authorized by this section may be applied only to its intended use, except to the extent the court determines that the value of the trust property exceeds the amount required for the intended use. Property not required for the intended use must be distributed to the settlor, if then living, otherwise to the settlor’s successors in interest.

701.0409 History History: 2013 a. 92.

701.0410 701.0410 Modification or termination of trust; proceedings for approval or disapproval.

701.0410(1) (1) In addition to the methods of termination prescribed by ss. 701.0411 to 701.0414, a trust terminates to the extent the trust is revoked or expires pursuant to its terms, no purpose of the trust remains to be achieved, or the purposes of the trust have become unlawful or impossible to achieve.

701.0410(2) (2) A proceeding to approve or disapprove a proposed modification or termination under ss. 701.0411 to 701.0416, or a proposed trust combination or division under s. 701.0417, may be commenced by a trustee or beneficiary, and a proceeding to approve or disapprove a proposed modification or termination under s. 701.0411 may be commenced by the settlor. The settlor of a charitable trust may maintain a proceeding to modify the trust under s. 701.0413. Except as provided in s. 701.0411 (1m), a trustee does not have standing to oppose a proposed modification or termination commenced under s. 701.0411 (1).

701.0410(3) (3) A trustee may not be compelled by a modification or termination under this section or under ss. 701.0411 to 701.0416 to make distributions to or for any beneficiary of a trust for an individual with a disability or to terminate the trust, during the lifetime of the individual with a disability. A court may modify the terms of a trust that has an individual with a disability as a beneficiary with retroactive effect or reform the terms of such trust to achieve the settlor’s objective or, if because of circumstances not anticipated by the settlor, to otherwise further the purposes of the trust so that it does not result in trust property being countable as resources or income of the individual with a disability for purposes of public assistance.

701.0410 History History: 2013 a. 92; 2023 a. 127.

701.0411 701.0411 Modification or termination of noncharitable irrevocable trust by consent.

701.0411(1) (1) Except as provided in sub. (1m), a noncharitable irrevocable trust may be modified or terminated, with or without court approval, upon consent of the settlor and all beneficiaries, even if the modification or termination is inconsistent with a material purpose of the trust. A settlor’s power to consent to a trust’s modification or termination may be exercised by a representative under s. 701.0303 only if the representative is specifically authorized to consent to a trust’s modification or termination under a power of attorney, the terms of the trust, or by a court under a guardianship or conservatorship.

701.0411(1m) (1m) A trust described in 42 USC 1396p (d) (4) may be terminated or modified under sub. (1) only with consent of the trustee, and is not considered revocable because it lacks ascertainable remainder beneficiaries.

701.0411(2) (2) With the approval of the court, any of the following may occur:

701.0411(2)(a) (a) A noncharitable irrevocable trust may be terminated upon consent of all of the beneficiaries if continuance of the trust is not necessary to achieve any material purpose of the trust.

701.0411(2)(b) (b) A noncharitable irrevocable trust may be modified upon consent of all of the beneficiaries if the modification is not inconsistent with a material purpose of the trust.

701.0411(3) (3) A spendthrift provision in the terms of the trust is not presumed to constitute a material purpose of the trust.

701.0411(4) (4) A court may not compel a beneficiary to consent to a modification or termination to satisfy a creditor of the beneficiary.